City of New Orleans v. Calamari , 150 La. 737 ( 1922 )

LAND, J.

The defendant was tried in the recorder’s court of the city of New Orleans on an affidavit charging the violation of Ordinance No. 6186, relative to operating a “to hire” automobile on St. Charles street in said city. He was convicted and sentenced to pay a fine of $25, or, in default of payment, to serve 30 days in the parish prison. Prior to conviction, defendant filed a demurrer to the affidavit, for the reason that said ordinance is “unnecessary, arbitrary, discriminating, unreasonable, confiscatory, illegal, null, unconstitutional, void and ultra vires.”

[1] Counsel for defendant in this demurrer refers to the provisions contained in Ordinance No. 6173, as a basis for the charge .that Ordinance 6186 was passed for the sole purpose of depriving defendant from operating a car for hire at all, etc.; but, as this court cannot take judicial cognizance of the provisions of Ordinance No. 6173, and as a copy of this ordinance has not been incorporated in the transcript of appeal, we are compelled to pass upon the legality of Ordinance No. 6186 without taking into consideration the prior ordinance.

Ordinance No. 61SC, C. C. S., is “an ordinance prohibiting the use of certain streets as stands for vehicles operated for hire,” and provides as follows:

“Whereas, in order to relieve congestion in streets in the central business district of the city, it is expedient to facilitate the primary use of the streets as ways for public travel by limiting their use as stands for vehicles for hire; therefore,

“Section 1. Bo it * * * ordained by the commission council of the city of New Orleans, that, except as otherwise provided in this ordinance, no person shall use as a stand for any vehicle operated for a fee, charge,' profit, reward or hire, any part of any of the following streets, to wit:” [Then follow the names of a number of streets, running from either side of Canal street, and including St. Charles street from Canal street, to Howard avenue.]

“Provided, that nothing heroin shall be construed as depriving operators of such vehicles of the rights common to them and to operators of other vehicles to park vehicles in the streets for other purposes, as said rights are or may be determined and regulated by law or ordinance.”

“Section 2. Be -it further ordained, etc., that any person violating any of the provisions of this ordinance shall, on conviction, be fined not more than twenty-five dollars; or imprisoned for not more than thirty days, or both, at the discretion of the court having jurisdiction.”

[2] The Constitution of the state vests ali the legislative power in the General Assembly, which grant includes all of the police power; and the General Assembly has vested in the city of New Orleans so much of the police power as is required by that corporation for the discharge of its functions, including the power to enact and to enforce all ordinances necessary for the protection of the lives and property, the preservation of the health, and the promotion of the comfort, convenience, and general welfare of its inhabitants, and including the power to regulate the use of the streets and to maintain them in a safe condition. City of New Orleans v. Le Blanc, 139 La. 113, 71 South. 248.

An inspection of the ordinance in question shows clearly that it grants to all operators of vehicles for hire the same right of using freely the streets for the primary purpose of public travel, and the same privilege of parking accorded to the operators of other vehicles. The ordinance in question does not limit in any way, or to any extent, the right of the operators of vehicles for hire to conduct their business of transporting passengers or freight over any of the streets named in this ordinance; but it does prohibit the use of the streets by them as stands for private business, in order to prevent the congestion of traffic along such streets, and the subsequent denial of the free use of same to the public in common. It is true that the streets belong to the public, and that the operators of “to hire” ears, as a part of the public, have the right to use them. However, it does not follow that, because defendant is engaged in a legitimate business, it can be lawfully conducted in a public street, without the consent of the city authorities. Section 28 of Act 159 of 1912, the charter of the city of New Orleans, declares that “no privilege of any kind for the use of any part of any street, * * * in connection with the conduct of any private business, except such as are, * * * connected with grants of the charter referred to in section 29 * * * shall be granted, * * * except on adequate consideration,” etc., and the business of operating to hire cars is not referred to in section 29, which includes ordinances.providing for the lighting of streets or public places, the lease of the public markets or the establishment of markets, or other utilities to become public on terms, the operation of ferries, the removal or disposal of garbage, etc., or purporting to award a contract covering the performance or discharge of any public duty or function.

[3] The streets of the towns and cities in the state of Louisiana being among the things that are “public” and “for the common use,” no individual can have a property right in such use for the purposes of his private business, unless, speaking generally, that business being in the nature of a public service or convenience, such as would authorize the grant, the right has been granted by the state, which alone has the power or right to authorize it, or by the particular city or town, acting under the authority of the state, and, in such cases the right can be exercised only in accordance with the conditions of the grant; that is to say, an individual seeking, but not possessing, a right of that kind, may accept the grant, with the conditions imposed by the offer, in which case he becomes bound by the conditions, or he may refuse to accept .the conditions, in which ease there is no grant, and without the grant so offered, or some other, from the authority competent to make it, he can never acquire the right to make use of a street as his place of business. Le Blanc v. City of New Orleans, 138 La. 243, 70 South. 212; City of New Orleans v. Le Blanc, 139 La. 125, 71 South. 248.

“The municipal regulation of vehicles of all sorts, commonly used within the corporate limits, is a valid exercise of the police power, not inherent, but granted to the corporation. The city may prescribe what style of vehicle shall be used for public passenger service, hut not for private use; what streets they must travel, if regular lines; and where hacks must stand; whether the driver may leave them, and what mark of distinction he shall wear. They may also prohibit fast driving, but not slow driving; may require a license for each vehicle; and may assess a penalty against a public conveyance for refusal to carry a passenger.” Cyc. 731, 732.

[4] The ordinance which defendant has attacked is not discriminatory in a constitutional sense, as it applies not only to the operators of to hire cars, but also to the operators of all other vehicles to hire. It does not discriminate between individuals of the same class. It imposes .a like burden upon all operators of vehicles for hire. State v. Hiney, 130 La. 621, 58 South. 411; City v. Sanford, 137 La. 651, 69 South. 35, L. R. A. 1916A, 1228.

[5] The equal protection of the Fourteenth Amendment does not take away from the state or a municipal corporation the power to classify in the adoption of police laws or regulations, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without reasonable basis, and is therefore purely arbitrary; and one who assails the classification in such law or regulation must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 31 Sup. Ct. 337, 55 L. Ed. 377, Ann. Cas. 1912C, 160.

[6] The Fourteenth Amendment was not intended to hamper or to authorize the courts to interfere with the state’s exercise of its police power, either directly or through the action of its municipal bodies, in the regulation and promotion of the morals, health, comfort, convenience, and safety of her citizens. Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923.

The ordinance in question being a legitimate exercise of the police power of the city of New Orleans, the judgment appealed from is affirmed.